The UNGPs recognize the key role of HRDs in human rights due diligence. Businesses are urged to consider HRDs as an important expert resource that may help companies assess their human rights impacts, and enable them to understand the concerns of affected stakeholders, particularly “in situations where consultation with affected stakeholders is not possible.” (UNGP 18 and Commentary, p. 20).

In practice, HRDs are often subject to persecution and harassment, punishment, arbitrary arrest or detention, especially in countries lacking effective rule of law. The UNGPs acknowledge the risks faced by HRDs (Commentary to UNGP Principle 26), which requires states to ensure that “the legitimate and peaceful activities of human rights defenders are not obstructed.”

In a 2015 report presented to the UN General Assembly by the UN Special Rapporteur on the situation of HRDs, HRDs working on business and human rights were considered as one of the most vulnerable groups of defenders. Particularly at risk are HRDs working on the intersection of land and environmental rights. Over 200 HRDs were killed in 2016 for protesting against negative environmental impacts and land-grabs affecting the livelihoods and rights of indigenous peoples and local communities. A 2016 report by the UN Special Rapporteur on the situation of land and environmental rights defenders noted the responsibility for or complicity of business actors in various human rights violations against defenders and communities working to protect fundamental rights and freedoms.

The B Team, a non-profit initiative launched by global business leaders to see the private sector do business responsibly, published a study, The Business Case for Protecting Civic Rights. The study shows that restrictions on civic liberty may have negative outcomes on the economy and that it is important for business to take the lead in protecting civic freedoms.

Eight major corporations from different sectors issued a joint statement with human rights defenders through the Business Network on Civic Freedoms and Human Rights Defenders, advocating the “protection of civic freedoms and respect for the rule of law”. Notably, the statement acknowledges the importance of the HRD role in finding problems in business operations and promoting due diligence.

Adidas and Nike publicly defended labour rights activists against the Cambodian regime, urging the government to drop politically-motivated criminal charges.

In the United States, Microsoft, Cisco, Airbnb, Apple, and others, with the U.S. Chamber of Commerce spoke against the Trump administration’s immigration policies.

In Germany, BMW and Daimler supported employees challenging far-right riots against immigrants; while the CEO of Siemens publicly affirmed tolerance as essential business values.

A special group of HRDs are whistleblowers, which are individuals who have and report insider knowledge of illegal activities (such as wrongdoing, corruption, immoral behavior) occurring in an organization. Whistleblowers may be employees, suppliers, contractors, clients or any individual who somehow becomes aware of illegal activities taking place in a business either through witnessing the behavior or being told about it, and discloses this information publicly to expose the existing wrongdoing and prevent it from happening in the future. The law should protect whistleblowers, yet this is often not the case in many countries. Instead, they are often fired or treated unfairly (e.g. not promoted) for having ‘blown the whistle’. However, recent years have seen an increase in whistleblower protection legislation (See: Blueprint for Free Speech website). For example, Norway amended its Working Environment Act 2005 in 2007 to add provisions for the protection of employees who report “censurable conditions” in the organization [Blueprint for Free Speech, Norway: Overview]. In the United States, federal law (The Whistleblower Protection Act of 1989, Pub.L. 101-12 as amended) protects federal whistleblowers who work for the government and report agency misconduct, while the Occupational Safety and Health Act (OSH Act) of 1970, Section 11(c), protects employees from being discriminated against by employers for exercising their rights under the OSH.

the person/organisations to whom protected disclosures may be made, and how they can be made;

how the company will support whistleblowers and protect them from detriment;

how the company will investigate protected disclosures;

how the company will ensure fair treatment of employees of the company who are mentioned in protected disclosures, or to whom such disclosures relate;

how the policy is to be made available to officers and employees of the company; and

any other matters prescribed by the regulations.

The Australian Bill introduces penalties for corporations and individuals which contravene the legislation including large civil fines and criminal sanctions including imprisonment.

Both companies and human rights defenders have a shared interest in an environment that respects the rights to freedom of expression, association and assembly, and is characterized by non-discrimination, transparent and accountable government, freedom from corruption, and respect for the rule of law.

This point briefly mentions human rights defenders. The NAP states that various public services, in particular the MFA and the OECD NCP, have information on the human rights situation in different countries, due to their activities (this is the case of for the NCP); the local presence of Belgian representation; contacts with local civil society (especially human rights defenders), other “external” partners sensible to human rights issues (such as the delegations of the European Union and its Member States, the local offices of the United Nations and their specialized bodies, the Council of Europe, etc.) or with representatives of like-minded countries.

Chile

Colombia

Action point 3.1 (p. 13):

“Within the following year of the Plan being launched, the Working Group on Business and Human Rights will find allies for the training of civil society, special protection groups and small enterprises, regarding the United Nations Guiding Principles and the international standards on human rights and business, and this Plan.”

Action point 3.3 (p. 14):

“The Ministry of Internal Affairs will propose the inclusion of the business and human rights issue on the agenda of the National Committee for Human Rights Defenders, Social and Community Leaders, as well as the Regional Committees for Guarantees, with the purpose of using them as meeting spaces to settle conflicts with impacts on human rights caused by the business activity.”

Action point 3.5 (p. 14):

“The Ministry of the Interior will organize actions intended to guarantee the necessary safety conditions so the leaders working on business and human rights matters might carry out their activities in proper conditions, according to the current guarantee policy for the defense of human rights.”

Action point 5.4 (p. 16):

“The Council to the President for Human Rights and the Ministry of National Defense will encourage the implementation of the Voluntary Principles on Security and Human Rights. To that end, they will alternately engage in the areas where such issue is treated.”

Action point 7.1 (p. 19):

“The Working Group, advised by the Expert Committee, will encourage discussion fora to determine the best ways for enterprises to establish easy-to-access, transparent and effective complaint and claims offices or mechanisms for prevention and mitigation and remedy of adverse human rights effects as may be caused by their activities.”

Action point 7.6 (p. 19):

“The Working Group will tend towards enterprises, through their complaint offices, receiving and diligently managing the citizen and community claims, as considered to be affected by the adverse effects caused by their operations.”

Finland

The Finnish NAP makes reference to human rights defenders in general terms. It makes no reference to whistle-blowers.

3 Expectations towards companies and support services

3.5 Support for Finnish and international organisations promoting the subject [page 28]

“Defenders of human rights, trade unions and other civil society operators can play an important role in the assessment of the impact of business activities on human rights, the availability of legal remedies and national and international discussion. Finland has a strong tradition of mutual interaction between the authorities and civil society operators. The collaboration between labour market parties is part of the Finnish social contract. Ministries support the business and human rights activities of Finnish and international non-governmental organisations in various ways.”

“Trade unions and non-governmental organisations play an important role in securing human rights and rights at work. Finland cooperates in various ways with human rights defenders and non-governmental organisations exposing corruption. Mainly within the framework of EU cooperation, Finnish representatives are involved in the monitoring of legal processes on a case-by-case basis when monitoring is believed to have a positive impact on the protection of the rule of law.”

France

I- The State’s Obligation to Protect Human Rights

The European Framework

Actions Underway [page 18]

France has transposed the European Directive on trade secrets into national law, allowing businesses to protect trade secrets while assuring the necessary transparency of business activities and conduct, and the protection of whistle-blowers acting in the public interest.

II- Businesses’ Responsibility to Respect Human Rights

5. Employee Representatives [page 43]

The NAP lists exiting legislation related to whistle-blowers in matters of corruption, public health, conflict of interest, tax evasion and large-scale economic and financial fraud, which protect individuals (referred to as whistle-blowers) requesting the company to disclose information either directly or through legal means. It furthermore mentions existing legislation asserting workers councils’ “right to economic alert”, which enables it to demand information in case of significant preoccupations regarding the company’s financial situation.

III- Access to Remedy

At the National Level

1.6 Whistleblower Rights [page 53]

The Act 2016-1691 of 9 December 2016 on transparency, fighting corruption and modernizing the economy replaced earlier sector-specific provisions on whistleblowers. Under the new Act, a single framework was created to protect whistleblowers who now share a common status regardless of the field concerned.

The whistleblower status now includes:

A general definition: a whistleblower is defined as an individual who reveals or reports, disinterestedly and in good faith, a crime or offence; a serious and manifest breach of an international commitment duly ratified or approved by France, of a unilateral act of an international organization adopted on the basis of such commitment, or a serious breach of a law or regulation; or a serious threat or harm to the public interest, of which the whistleblower has had personal knowledge.

A process for raising alerts: in order to receive legal protection, the whistleblower must respect a three-step process, raising the alert first with his/her employer or the contact person designated by the employer, second with the judicial or administrative authority and third with the public, as a last resort.

Three forms of legal protection:

Professional protection against all forms of retaliation for raising the alert;

Protection against criminal liability: whistleblowers are not considered criminally liable for disclosing information that is a legally protected secret if this disclosure is necessary and proportionate to the interests being defended and the whistleblower respects the alert process described above. However, this exemption does not cover whistleblowers who disclose national defence secrets, medical secrets or lawyerclient communications.

Protection against being prevented from raising the alert : any person who interferes with the transmission of an alert by a whistleblower is punishable by law by up to one year of imprisonment and a €15,000 fine. The Act also reinforces sanctions for malicious defamation proceedings against whistleblowers.

Actions to be Implemented

Amend Article 113-8 of the Criminal Code so that a prosecutor’s decision not to open an investigation into a complaint lodged by the victim of a crime committed by a French entity abroad can be appealed.

Continue to examine national and international options to address the denials of justice faced by plaintiffs attempting to take legal action to obtain remedy for harm caused by the subsidiaries of groups operating in countries where courts do not have the necessary independence to deliver justice, or where plaintiffs are threatened.

Germany

1.1 Basic rules of economic policy

“The protection of whistleblowers is a highly valuable accompanying measure in the detection of exploitative employment. General provisions in the field of labour law (sections 612a and 626 of the German Civil Code and section 1 of the Protection against Unfair Dismissal Act) and in constitutional law (Articles 2(1), 5 and 20(3) of the Basic Law) provide the legal basis for such protection.

There are also numerous provisions of special legislation which supplement the protection of whistleblowers guaranteed by the aforementioned provisions in particular areas of activity, examples being section 13 of the Money Laundering Act and section 17(2) of the Occupational Health and Safety Act.”

Measures

“As part of the transposition of European Directive 2016/943/EU on the protection of undisclosed know-how and business information (trade secrets), the protection of whistleblowers in German law is being further developed. The purpose of this legislation is to make it clear that the disclosure of trade secrets is lawful if its purpose is to expose professional or other misconduct or illegal activity in order to protect the general public interest.”

Development policy [page 20]

Measures

“The Federal Government will also take specific action to step up its wide-ranging commitment to the protection of human rights defenders when applying the UN Guiding Principles. In the field of business and human rights, as elsewhere, development policy is about standing up for the rights of vulnerable groups, such as indigenous peoples or children and youth or persons with disabilities.”

Ireland

Section 1: International Context and Domestic Consultative Process

Other international initiatives [page 10]

“In March 2016, the Council of Europe adopted a Recommendation to assist Member States in preventing and remedying human rights violations by business enterprises. The Recommendation elaborates on access to judicial remedy, drawing on Council of Europe expertise and legal standards and puts special emphasis on the additional protection needs of … human rights defenders.”

Section 3: Actions

II. Initial priorities for the Business and Human Rights Implementation Group [page 18]

Annex 1 – List of additional and ongoing actions to be carried out across Government

Trade and Investment [page 21]

“13. Encourage Irish companies operating abroad to adopt good practice with regards to consultation with human rights defenders and civil society in local communities, particularly on environmental and labour conditions.

15. Provide up to date guidance on the protection of human rights defenders working in the area of business and human rights through the circulation of Human Rights Defenders Guidelines to all Embassies.”

Italy

IV. Government Responses: Current activities and future commitments

A. Foundational Principles [page 10]:

… Italy, in line with its undertakings at International level, recognizes the need of further improvements and commits to fill the legislative gaps still existing with refer to specific human rights protection mechanisms and instruments. To this purpose, the Government will:

…

Strengthen mutual cooperation and support to… human rights defenders…in consideration of their essential role in the promotion and protection of human rights;

…

The State-business nexus

Guiding Principle 4-6 [page 21]

…Italy has adopted the Legislative decree 19 April 2016, n.50, implementing the EU Directives, introducing a framework of a “socially responsible public procurement policy” and reputational requirements in public procurement awarding. With regard to companies directly or indirectly owned by the State, and following a joint effort with the Minister of Economy and Finance, in 2015 A.N.AC. issued guidelines on:… iii) definition of risk areas and protection of whistle-blowers;…

V. Monitoring, Update and Dissemination of the Plan [page 30]

…With the aim of guaranteeing a multi-stakeholder approach, the GLIDU (the Working Group on Business and Human Rights) will work jointly with a consultative body composed of all relevant non-institutional stakeholders (business community, trade unions, NGOs, civil society organizations, human rights defenders, individual experts and representatives from academia)…

Lithuania

Luxembourg

Part I – Rational Framework for the development, adoption and implementation of the NAP

1. International Context

1.3. European Council (pg. 14)

… On the basis of the 2011 UN Guiding Principles on Business and Human Rights, the Committee of Ministers of the Council of Europe adopted Recommendation CM / Rec (2016) on human rights and businesses. This instrument offers more targeted recommendations to help Member States prevent and correct human rights abuses by businesses and focuses on measures to encourage business to respect human rights particularly vulnerable groups … including human rights defenders.

Poland

Pillar I: The state’s duty to protect human rights

5. Planned changes in national legislation

Regulations on so-called whistle-blowers [page 25]

Efforts to regulate the position of so-called whistle-blowers will continue. Without changes in the sphere of the law and awareness, it will not be possible to realistically improve the situation of people who reveal abusive practices in Poland. Legislative work is currently under way at the Ministry of Justice with regard to regulations on the protection of whistle-blowers in Poland. It is also necessary to launch a broad social campaign due to the low level of social awareness of whistle-blowing and the role it plays in the public interest.

On 10 April 2017, a pilot programme called ‘Sygnaliści’ (Whistle-blowers) was initiated by the President of the Office of Competition and Consumer Protection. Anyone may report suspected anti-competitive agreement or abuse of a dominant position by a business on a dedicated telephone number or by email. This information can be submitted anonymously, and officials have no intention of determining the identity of the whistle-blower. However, there is a need to address the legal issues related to the status of whistle-blowers in a systematic way, and to protect them from possible negative consequences from the parties whose infringements they have reported.

South Korea

Spain

The Spanish NAP makes no reference to whistle-blowers. It contains the following references to human rights defenders.

Guiding Principle 25

In relation to the access to reparation mechanisms, it is important to highlight the role of human rights defenders, and the serious obstacle posed by threats or repression directed against them. In this context, it is worth mentioning the Program for Protection and Temporary Shelter of Threatened Human Rights Defenders, managed by the Human Rights Office of the Ministry of Foreign Affairs and Cooperation since 1995. The Program is directed to threatened human rights defenders in at risk situations due to non-violent activity in defence of universally recognised human rights. The Program is developed in close collaboration with civil society organisations, which can request the inclusion of a person in the Program.

Measure 3

“The Government will apply its commitments derived from the United Nations Declaration on Human Rights Defenders.”

Sweden

The Swedish NAP includes measures related to whistle-blowers, but none on human rights defenders.

2 The corporate responsibility to respect human rights [page 14]

“In keeping with the UN Guiding Principles, businesses’ human rights efforts are expected to include the following main points: …

Reporting …

Introduce guidelines on internal whistleblowing”

3 Access to remedy [page 17]

Companies’ own redress mechanisms

“No ready-made model exists for how a company should best organise its own grievance redress mechanism. It is for each company to assess what is appropriate on the basis of its specific circumstances. Some criteria include: …

Processes for internal whistleblowers, for follow-up on whistleblowing concerns and protection of whistleblowers”

Annex: Measures taken [page 21]

Regulations and legislation

“The Inquiry on protection of workers who blow the whistle on various unsatisfactory conditions, irregularities or offences submitted its report on 20 May 2014 (Swedish Government Official Reports 2014:31). The Inquiry proposes a new labour law act strengthening the protection provided to whistleblowers. Under the act, workers who have suffered reprisals for whistleblowing will be entitled to damages. The Inquiry’s proposals have been circulated for comment.”

Switzerland

5. National Action Plan on Business and Human Rights

5.7 Pillar 1: state duty to protect

5.7.5 Policy coherence

Guiding Principle 8 [page 29]

PI28 Coherence between the various policies, strategies and action plans

… CSR and business and human rights are also mentioned in the goals of the 2030 Agenda, as well as in several federal government strategies. These include, for example, this present Action Plan, the Sustainable Development Strategy, the Dispatch on Switzerland’s International Cooperation, the Foreign Policy Report, the Foreign Economic Policy Report, the FDFA Human Rights Strategy 2016-2019, the Swiss Guidelines on the Protection of Human Rights Defenders and the National Action Plan to Fight Human Trafficking. …

United Kingdom

The UK 2013 NAP provides in relation to New Actions planned that [page 12]:

“The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs:

(xi) Instruct our embassies and high commissions to support human rights defenders working on issues related to business and human rights in line with EU Guidelines on human rights defenders.”

Additionally, in the section on Actions taken to support business implementation of the UNGPs that [page 14-15]

“To help businesses to fulfil their responsibility to respect human rights we have so far:

(v) instructed our embassies and high commissions to work with host governments, local and UK business, trade unions, NGOs, human rights defenders, academics, lawyers and other local experts so we can help inform companies of the human rights risks they face”

In the introduction the NAP 2016 states that [paragraph 2, page 2]: “The National Action Plan contained a commitment to bring out an updated version. This update allows us to: (…) support the role Government can play in supporting human rights defenders in this field and the provision of remedy which is available to those who feel they are victims of business-related human rights abuses.”

In the section Government commitments, NAP 2016 states that [Paragraph 4, p.11]: “The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs: (…) Continue to work through our embassies and high commissions to support human rights defenders working on issues related to business and human rights in line with EU Guidelines on human rights defenders.” It goes on to to state in the Government Commitments section [Paragraph 1, page 17] that “The Government will continue to encourage UK companies in their work to respect human rights. We will: (…) instruct our diplomatic missions to work with host governments, local and UK business, trade unions, NGOs, human rights defenders, academics, lawyers and other local experts so we can help inform companies of the human rights risks they face.”

The UK 2016 Updated NAP provides a case-study on Supporting human rights defenders in Colombia, Mexico and Brazil which states [page 22]:

“The UK supported International Service for Human Rights to deliver an intensive training and advocacy programme for human rights defenders working on issues relating to business and human rights in Colombia, Mexico and Brazil. ISHR also created a toolkit to equip human rights defenders to engage with and influence business and supported an advocacy mission to the Inter-American Commission on Human Rights for the purpose of briefing diplomats and decision- makers on the situation of human rights defenders working on issues of business and human rights in Brazil, Colombia and Mexico and obtaining recommendations in that regard.”